Land and Environment Court New South Wales Medium Neutral Citation: Broderick v Randwick City Council [2012] NSWLEC 1306 Hearing dates: 5 October 2012 Decision date: 08 October 2012 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. The application to modify development consent DA/436/2011 for "Alterations and first floor addition to the existing garage including new secondary dwelling at first floor level" at 8 Hincks Road Kingsford is approved subject to the modification in Annexure A. 3. The exhibits are returned except for exhibits 1 and B. Catchwords: DEVELOPMENT APPLICATION: alterations and first floor additions to the existing garage, including new secondary dwelling - height and visual bulk - inconsistency with zone objectives - precedent Legislation Cited: Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 1998 State Environmental Planning Policy (Affordable Rental Housing) 2009 Category: Principal judgment Parties: Ray Broderick (Applicant) Randwick City Council (Respondent) Representation: Litigant in person (Applicant) Ms Peta Hudson, solicitor (Respondent) - (Applicant) Marsdens Law Group (Respondent) File Number(s): 10884 of 2012 Judgment 1COMMISSIONER: This is an appeal against an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify application DA436/2011 that was approved by Randwick City Council (the council) on 29 September 2011 for alterations and first floor additions to the existing garage, including new secondary dwelling at first floor level at 8 Hincks Street, Kingsford (the site). 2The proposed modification seeks to increase the wall height of the secondary dwelling by 600 mm although the overall height is not increased through the flattening of the pitched and gable ended roof form. The site and surrounding area 3The site has a 10.4 m frontage to Hincks Road and a secondary frontage of 5.85 m to Isis Lane where the garage and secondary dwelling is located. The site has an area of 473.1 sq m with a depth that varies between 59.565 m and 59.78 m. 4Residential development adjoins the site to the west and east with a similar pattern of development with dwellings located at the Hincks Road frontage and garages at the Isis Lane frontage. The opposite side of Isis Lane is zoned 3B Local Business and contains a substation, a three storey mixed use development and some single residential development. Relevant planning controls 5The site is zoned Residential 2A under Randwick Local Environmental Plan 1998 (LEP 1998). The relevant 2A zone objectives are: 10 Zone No 2A (Residential A Zone) (1) The objectives of Zone No 2A are: (a) to provide a low density residential environment, and (b) to maintain the desirable attributes of established residential areas, and (c) to protect the amenity of existing residents, and 6The proposed development is not permissible in the 2A zoning of LEP 1998 but is permissible by way of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) as a "secondary dwelling". Division 2 of SEPP ARH provides requirements for secondary dwellings. 7The site is also subject to draft Randwick Local Environmental Plan 2012, although no contentions were raised in relation to this draft plant. The contentions 8The contentions raised by the council through the evidence of Mr Scott Williamson, a town planner, relate to: * 1. excessive height and visual bulk when viewed from both the Isis Lane elevation and the southern elevation from adjoining residential properties; * 2. inconsistency with the 2A zone objectives and * 3. precedent. 9The applicant, Mr Broderick, was self represented and provided no expert Height and visual bulk 10Mr Williamson relies on the council's Dwelling Houses and Attached Dual Occupancies Development Control Plan (the DCP) for his opposition to the proposed development. Clause 4.3 provides requirements for Height, Form and Materials and where the preferred solution provides for: S 1 The external wall height of buildings or additions to the rear does not exceed 3.5 metres. 11Mr Williamson maintains that the proposed wall height of 4.1 m at the Isis Lane frontage (north elevation) and 5 m internal (south elevation) introduces an uncharacteristic effect of dominance to Isis Lane and unacceptably introduces bulk and scale impacts through the dominance of this elevation to the north facing living areas and principal open space areas of the adjoining residential properties. These concerns were also expressed by both the residents either on the site inspection or by way of written correspondence. 12Mr Broderick's response to the evidence of Mr Williamson was to provide six recent examples where the council had approved similar developments (Exhibit A) with a wall height greater than 3.5 and to question Mr Williamson's conclusions on the unacceptable height and bulk from both Isis Lane and from the adjoining properties. 13With the benefit of the inspection of the site and surrounding areas I am satisfied that the development as proposed by Mr Broderick is acceptable for a number of reasons. First, any reliance on the DCP must be questionable, given that the proposal does not fit comfortably with either of the forms of development addressed in the DCP, that is dwelling houses or attached dual occupancies. Clause 1.1 states the DCP "contains advice and controls for the planning and design of dwelling houses and attached dual occupancies within the City of Randwick." The proposal would be commonly called a detached dual occupancy or secondary development under SEPP ARH and as such the DCP could potentially be said to be not applicable to this form of development. 14Second, and while Mr Williamson placed considerable emphasis on the 3.5 m external wall height requirement in S.1 of the DCP, the DCP provides for an overall maximum building height for an attached dual occupancy of 9.5 m and a maximum wall height of 7.0 m in the 2A zone. 15Third, and even though Mr Williamson makes reference to the development standards for secondary dwellings in Sch 1 of SEPP ARH relating to maximum floor area and setbacks, his evidence surprisingly contains no reference to the height requirement in cl 6 of sch 1 where it states, 6. Building height Development for the purposes of a second dwelling must not result in a new building or a new part of an existing building having a building height above ground level (existing) of more than 8.5 metres." 16I note that the proposed building easily satisfies this requirement and that there is no specific height requirement relating to maximum wall heights. Given that the DCP seeks to address a different form of development than that anticipated by the DCP, I see no reason why the height requirement in SEPP ARH should not be used for the consideration of height in the application. Zone objectives 17Even if I accept that the 2A zone objectives are relevant (as the proposal is prohibited in this zone) I have little trouble in concluding that the proposed development will have little, if any impact on the residential environment or the amenity of existing residents. From Isis Lane, the additional wall height is not discernible and would not be noticeable by any person other than those with an intimate knowledge of the modification. From other locations, the additional 600 mm height difference from the approved development may be noticed but, in my view, will not unacceptably add to the height and bulk of the building. It would be difficult, if not impossible to conclude that the small additional wall height and with no overall height increase, is sufficient to make the modification inconsistent with the 2A zone objectives when the original application was found to be consistent with the 2A zone objectives. Precedent 18Mr Williamson honestly accepted that the council had not consistently applied the 3.5 m wall height requirement from the DCP and could not provide a reasonable response to the six recent examples provided by Mr Broderick where the 3.5 metre height was exceeded and approved by the council. 19While precedent can be a valid planning consideration, the particular characteristics of this application and the acceptance by Mr Williamson that the 3.5 metre wall height control, if it applies, has not been regularly applied, does not support this contention. Orders 20The orders of the Court are: 1. The appeal is upheld. 2. The application to modify development consent DA/436/2011 for "Alterations and first floor addition to the existing garage including new secondary dwelling at first floor level" at 8 Hincks Road Kingsford is approved subject to the modification in Annexure A. 3. The exhibits are returned except for exhibits 1 and B. __________ G T Brown Commissioner of the Court ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2012